XY v. Toronto Housing Connections, 2011 HRTO 1377

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

XY

Applicant

-and-

Toronto Housing Connections

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 21, 2011

Citation: 2011 HRTO 1377

Indexed as: XY v. Toronto Housing Connections

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 9, 2011, alleging discrimination on the basis of disability in the areas of housing, and goods, services, and facilities.

2The applicant also filed on June 9, 2011, a Request to Expedite and a Request for Interim Remedy with her Application. The purpose of this Interim Decision is to address the applicant’s Requests.

BACKGROUND

3In her Application, the applicant alleges that the respondent, which keeps a list of individuals waiting for subsidized units in various buildings throughout the City, granted her special priority for being a victim of abuse in March. She alleges that she was told that she was on the “highest priority” due to her high risk factors. She subsequently declined two available units because she alleges they triggered her environmental sensitivities. She alleges that her disability was not taken into consideration.

4The applicant alleges that, in early April, she searched for and found an available unit suitable for individuals with environmental sensitivities. The property manager for the building advised her that she could have the unit as a subsidized unit for May 1, with the permission of the respondent. She alleges that she approached the respondent and asked for a letter of permission but the respondent refused.

REQUEST TO EXPEDITE

5The applicant submits that the issue is time-sensitive and that, if the Application proceeds in accordance with the Tribunal’s regular process, the accommodation will no longer be recognized as a “priority placement” as so much time will have elapsed.

6With respect to the harm that would result if the Request is denied, the applicant submits in her Request to Expedite that she will experience further hardship, which will directly affect her physical illness, financial deterioration, and a continued lack of safe living, as well as a lack of safety due to dependence on her abuser. She submits that she will begin paying market rent in her abuser’s name, and she is currently on ODSP, cannot afford market rent, and will have inadequate finances left over for food. She has multiple sclerosis, environmental sensitivities, and gluten intolerance, and requires a special diet which will not be possible with such a high rental expense. She is also being forced to have frequent continued contact with her abuser, and these factors, together, are having a severe impact on her health. She submits that her Application should be given priority because she is currently dependent upon her abuser for housing and, consequently, becoming increasingly physically ill.

7The applicant’s physician provided a signed letter, dated June 15, 2011, requesting that an interim remedy be implemented, such as placing the applicant next in line for an appropriate unit, as the “control situation” with her abuser would be alleviated. The physician indicates that it is vital that the applicant be provided with an interim remedy immediately as her physical health and emotional and physical safety are at significant risk if she is to maintain her current situation for very much longer. He submits that her case needs to be expedited. He confirms that she is on ODSP, suffers from significant environmental sensitivities, and her health is greatly affected by stress. He explains that the ongoing stress of being dependent on her abuser, and her past repeated homelessness, and use of shelters, is causing significant physical illness with new onset asthma, stomach problems, anxiety and fatigue.

8Subsequent to the filing of her Request to Expedite, the applicant provided the Tribunal with a signed statement explaining that an incident occurred with her abuser that resulted in the police being called. The next morning, on June 29, 2011, she was told by “property management” that she must leave the unit and she is now homeless.

9An updated notation from the applicant’s physician, dated June 29, 2011, confirms that the applicant is homeless, is unsafe at shelters due to chemical sensitivity, and urgent appropriate housing placement is needed.

10In its Response to the Request to Expedite, the respondent indicates that it does not object to having the hearing held at an early date, as long as it does not impact on the timeline for fully responding to the Application, namely, August 10, 2011.

11The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances that require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application, and the harm that would result if the request is denied.

12In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

13Having regard to all of the circumstances and the evidence submitted in support of the Request to Expedite, the Request to Expedite is granted. I am satisfied that, when considered together, the applicant’s housing and financial situation, and health issues, are truly urgent circumstances that may affect the fair and just resolution of the merits of the Application if the Application does not proceed in an expedited manner.

REQUEST FOR INTERIM REMEDY

14The applicant also seeks an interim remedy that the respondent inform the housing provider where the applicant has found a suitable unit that she be placed next in line for a subsidized unit with that housing provider.

15In support of her Request for Interim Remedy, the applicant essentially relies on the same facts set out in support of her Request to Expedite. With respect to the harm that would result if the Request for Interim Remedy is denied, the applicant submits that she will remain dependent on her abuser for housing and will not have the same options for immediate escape to the shelter system due to her environmental sensitivities. The applicant refers to harm that may result due to physical injury from her abuser, and disability-related illness due to chemical exposure if she is forced to return to the shelter system. She submits that she has multiple sclerosis and is at risk of a relapse due to stress. She submits that an interim remedy would be just and appropriate because she has been enduring a lengthy history of discrimination from the respondent and an interim remedy would limit her damages and reduce the risk of permanent physical and psychological harm to her.

16In its Response to the Request for Interim Remedy, the respondent submits that it is not a housing provider, but maintains a waiting list for various housing providers, in accordance with rules made pursuant to the Social Housing Reform Act, 2000, S.O. 2000, c. 27. It connects housing providers with applicants as they appear on the waiting list. The respondent also submits that it is not an emergency housing provider, and the applicant is connected to social support systems that are mandated to provide emergency shelter. The respondent submits that those agencies should be working with the applicant until such time as a suitable offer of housing based on the applicant’s requirements is made to her. Based on the applicant’s current position on the waiting list, the respondent submits that it is not in a position to offer her a unit.

17The respondent provided an affidavit, sworn by its Interim General Manger. He explains in the affidavit that the respondent is responsible for determining initial eligibility and assignment of priority status. There are approximately 75,000 households, and more than 150,000 senior families and single persons, on the wait list. Approximately 4,000 households receive subsidized housing annually, and the average wait time is in excess of five years.

18The Interim General Manager explains further that the applicant received priority status on the waiting list as a victim of abuse, which is the highest priority. He submits that the respondent has supported the applicant to ensure that she is offered housing in buildings that meet her current needs, and she has been offered housing which she has declined. With respect to the applicant’s request that she be placed next in line for a unit with a particular housing provider, he states that the applicant is currently number 13 on the waiting list and there are 12 households holding priority status, at the same level, ahead of the applicant. He states that the respondent has made the most favourable decision it is able to make, based on the legislation and regulations currently in place.

19The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

20In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal stated that, since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”

21Normally, the Tribunal’s power to order respondents to do, or refrain from doing something, is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do, or refrain from doing something, in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA, supra.

22Assuming, without deciding, that the Application appears to have merit and meets the first criterion for granting an interim remedy, I am not satisfied that it has been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.

23With respect to the balance of harm or convenience, the applicant seeks to be placed next in line for a subsidized unit with a particular housing provider. The respondent has explained that, with this housing provider, there are currently 12 households that have the same priority status as the applicant, but are ahead of the applicant on the waiting list. Placing the applicant “next in line” on the waiting list will not necessarily alleviate the applicant’s circumstances immediately, as it is not clear when a unit with the particular housing provider will become available. Further, the Tribunal has determined that this matter will be dealt with on an expedited basis.

24The third criterion in Rule 23.2, whether it is just and appropriate in the circumstances to grant an interim remedy, recognizes the discretionary nature of interim relief. There will be a number of factors that the Tribunal will consider, but ultimately it calls upon the Tribunal to decide whether the request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances. See TA, supra.

25There is nothing in the materials to indicate that the Tribunal will not be able to provide a full, effective, and appropriate remedy at the end of the hearing, should there be a finding in the applicant’s favour. In addition, while the Tribunal has no details regarding the particular circumstances of others on the waiting list for the particular housing provider where the applicant seeks a unit, it appears that placing the applicant next in line would give her priority over others who have the same priority status that she has, but are ahead of her on the waiting list. Accordingly, the requested interim remedy does not appear necessary to further the remedial purposes of the Code, and I am not satisfied that it would fair in the circumstances to grant the requested interim remedy.

CONFIDENTIALITY

26With her Application, the applicant included a “Request for confidentiality”. The applicant submits that due to the nature of her Application, which details very personal medical information, as well as information related to her personal safety, she is requesting that the Application, and any further proceedings, be deemed confidential. The applicant appears to be concerned about “public disclosure” of her name.

27The respondent did not provide submissions in response to the applicant’s request for confidentiality and the time for doing so has passed.

28Pursuant to Rule 3.11 of the Tribunal’s Rules of Procedure, the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

29In the circumstances, and in light of the applicant’s concerns regarding safety in particular, the Tribunal determines that it is appropriate to identify the applicant in this Interim Decision by the initials “XY”. If this matter is not resolved at mediation, the Tribunal may seek further submissions from the parties with respect to the issue of confidentiality.

ORDER

30The applicant’s Request to Expedite is granted. The respondent is directed to file its Response (Form 2), and deliver it to the applicant, by no later than August 5, 2011. As the applicant and the respondent have indicated that they are agreeable to attending mediation, the Tribunal will schedule mediation as soon as possible after August 5, 2011.

31The applicant’s Request for Interim Remedy is dismissed.

32The applicant shall be referred to by the initials “XY” in this Interim Decision.

33The Tribunal notes that the applicant provided both a mailing address and an email address with her Application; however, she subsequently indicated that she is homeless. In the circumstances, the Tribunal will deliver a copy of this Interim Decision to the applicant at her email address only. The applicant is directed to advise the Tribunal and the respondent, as soon as possible, of the address(es) that the Tribunal and the respondents should use in corresponding with her.

34If this Application is not resolved at mediation, the Tribunal may issue further directions.

35I am not seized of this matter.